Mending the Digital Security Act

The recent custodial death of the writer Mushtaq Ahmed after being arrested under the Digital Security Act (DSA) and then held in jail for 10 months has generated indignations, uproars and protests both inside and outside Bangladesh. Many people blame this law for creating a climate of fear in the domain of journalism and curtailing the fundamental rights of citizens as enshrined in the country's constitution. Time has certainly come to re-examine, repair, or repeal this draconian law that was adopted by parliament in 2018 just before the 11th parliamentary election, to the detriment of people's freedom of speech and opinion.

It may be recalled that the government did not take into cognizance the objections raised by various quarters and stakeholders, including journalists, before the adoption of the bill in September 2018. Different unions of journalists, political parties, the editors' council and human rights organizations had vehemently opposed the law even during its drafting, cabinet approval, placement in parliament and approval by the president. Some ministers and parliamentary committee members publicly listened to the objections, but ultimately all the dissensions were completely ignored.

About two and a half years have by now elapsed since the adoption of the bill. But surprisingly, an analysis of 197 cases filed under the act last year shows that most of those were related to complaints like 'harsh words', 'defamatory statement', 'sharing distorted picture', and 'conspiracy against the government'. The police were empowered to undertake search, seizure and arrest operations without prior sanction of any court or authority under the act. In 80 percent of the cases, the complainants were either the police themselves, or leaders-workers of the ruling party. According to the survey findings of Centre for Governance Studies (CGS) released on 27 February, 783 cases were filed between 1 January 2020 and 25 February 2021 under the act. But the journalists, writers and critics of the government were the overwhelming majority among the accused against whom cases were lodged.

The framing of Digital Security Act was initiated in the face of widespread criticism of section 57 under the Information and Communication Technology (ICT) Act, 2006. This section was incorporated in 2013 when the 10th parliamentary election was imminent. Immediately after that amendment, cases under this section for defamation, harsh words, damaging the country's image, postings in electronic media etc. shot up alarmingly. When a movement was built up demanding cancellation of that section, the government framed an even stricter law after giving assurance that provisions of section-57 would be scrapped. In fact, all ingredients of section-57 were incorporated through various sections of the new law. Besides, some additional restrictions were imposed that clearly violated the constitutional right of freedom of speech cum opinion. There are also many ambiguities in the law, which opens up the door for misinterpretation and abuses.

Let us retrace history. The draft of the DSA was approved by the cabinet on 29 January 2018 and it was sent to the relevant parliamentary committee for examination on 9 April. The committee held meetings with the leaders of journalists and broadcast community in two stages and gave assurance that some changes would be made as per their suggestions. But the committee members did not keep their word while submitting recommendations prior to the passage of the bill on 19 September. The agitating editors' council then expressed serious apprehensions about the law when they sat with the then ministers for information, law, posts, telecommunication and information technology, and the press adviser to the prime minister on 30 September after being invited. The ministers gave assurance that their reservations would be discussed at the meeting of council of ministers in order to make amendments. But again, they did not keep their commitment. And ultimately, the bill was signed into law by the president on 8 October 2018.  

The editors' council had explained why they were worried about the DSA, which was published in newspapers on 29 September 2018. The council expressed their serious concern about 9 sections of the law (8, 21, 25, 28, 29, 31, 32, 43 and 53). After a thorough analysis, the council felt that the law would facilitate governmental surveillance of the activities of news outlets, control of news themes, and provide scope for curtailing the freedom of news media, as well as freedom of speech cum opinion of the citizenry as enshrined in the country's constitution. The law gave limitless power to the police for entering people's homes, undertaking searches and confiscating computers, computer networks, servers and digital platforms. The police could arrest any person out of suspicion without any warrant under this act, and even the permission of relevant authorities was not required for that.

The editor's council also claimed that there were many vagueness in the law, and many words had been used that could be easily misinterpreted and used against the news media. The law would create such an atmosphere of panic and fear that investigative journalism would become almost impossible, they apprehended. Besides, it would also generate dread among the general users of computers and computer networks. Among the 20 offences mentioned, 14 were non-bailable and 5 were bailable. Consequently, the climate of fear thus generated would make the profession of journalism extremely risky and almost impossible, the editors' council claimed.

It may be recalled that Bangabandhu Sheikh Mujibur Rahman told the Speaker of Pakistan Constituent Assembly on 3 February 1956 during a debate on the framing of the constitution, "It has to be written clearly that the freedom of the press will exist, they shall be able to write whatever they wish, and build up public opinion". It is time that the government heeds his advice during the centenary of his birth on the eve of the golden jubilee of Bangladesh's independence. The government should take immediate steps to repair or repeal this black law in the light of Bangladesh's constitution as well as relevant international legal regime.

(Dr Helal Uddin Ahmed is a retired Additional Secretary and former Editor of Bangladesh Quarterly. Email: [email protected])